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Rules and Regulations

Preamble

The nature of competitive bidding often involves substantial risk and is usually a costly and time consuming endeavor. We, therefore, affirm the right of a subcontractor bidder to take every precaution to protect the confidentiality of his bid by withholding its submission until the last possible moment. We likewise recognize the need of general contractors to receive sub-bids as early as possible to curtail potential errors caused by last minute bidding chaos. We also recognize the owner’s right to minimize a project’s cost while maximizing its quality.

Declaration

The El Paso Bid Depository System, Inc. is a corporation which has been established to structure a procedure for submission of bids on construction projects in order to benefit the construction industry and the general public.

Participation in the Bid Depository System is open to all interested parties, it is purely voluntary in all respects and is designed to enhance free and open competition. The Bid Depository System does not constitute the sole means whereby subcontractors may offer bids to general contractors, except for those subcontractors who choose to use the service.

Any user who chooses to and does use the Bid Depository System agrees that he has read and understands the Bylaws, Rules and Procedures and will pay such fees and/or assessments as provided therein or by action of the Board of Directors.

The El Paso Bid Depository System, Inc. has been formed by those members of the construction industry who have accepted the responsibility of restoring the construction industry to its traditional status as a leader in the free enterprise system.

Through the enhancement of open and fair competition, the El Paso Bid Depository System, Inc. is designed to benefit the American owner – consumer, general contractors and subcontractors.

Executive Director – the person selected by the Board of Directors to manage the Corporation’s office.

Registrar – the assistant to the Executive Director of the Corporation.

Working Hours – the hours between 9:00 A.M. through 12:00 NOON, Tuesday and Thursday except on Holidays.

Purposes and Objectives

To give the General Contractor more time to complete their bids, thereby reducing the chance of costly mistakes.

To establish a procedure through which General Contractors may receive written bids thereby eliminating mistakes caused by telephone bids.

To establish a designated orderly procedure for the submission of bids in order to eliminate unnecessary mistakes.

To establish a designated bidding procedure that will enhance free and open competition.

To establish a system of bidding that will benefit members of the construction industry and the general public.

To establish a system of bidding that will eliminate unethical practices such as collusive bidding.

Benefits

For the General Contractor

• Eliminates last minute rush.

• Receives in advance a uniform scope of work indicating the inclusions and exclusions for each project, thus giving the Contractor time to obtain prices on the excluded items in order to have a complete take off.

How to Bid Through the Depository

Application

The Corporation in conjunction with the Awarding Authority, the General Contractors and the Subcontractors will designate a job to be bid through the Bid Depository procedure.
The job then will be advertised in the local plan rooms, El Paso Bid Depository System website and/or other media as being bid through the Bid Depository.

Registration

Call, fax or e-mail the Bid Depository System Office to register your intent to bid.

Registered bidders receive:

• A list of registered bidders on the job.

• Access to the bid forms through the Corporation’s website to submit/retrieve bids.

Submission of Bids

Participating contractors will be given access to the bid forms through the Corporation’s website. Subcontractors must fill all information required on the bid form and will submit through the Corporation’s website. No modifications or alterations shall be made to these bid forms unless so instructed by the Corporation. Mark the appropriate box on the forms to show your capacity to provide a performance and payment bond for the job. Failure to check the box will be interpreted to mean that the Mechanical or the Electrical contractor cannot provide a performance and payment bond for the job. Please assure yourself that you can provide the bond before marking your forms, because false or inaccurate information may result in rejection of such bids and/or legal problems with the General Contractors. Subcontractors that cannot provide and pay for performance and payment bonds when such bonds are required by the owner or the Awarding Authority of the project should not submit a bid, since such bid may not be taken into consideration by the General Contractors.

The Bid Depository System does not encourage the use of linked subcontractor’s bids for Mechanical and Electrical trades; however, if a subcontractor elects to use such a method of bidding, the subcontractor shall use the appropriate forms provided by the Corporation for the combination bids.

Submit bids through the Corporation’s website by the Bid Depository Time.

Time for Submission

The bid form will designate the Bid Depository Time. All bids must be submitted through the Corporation’s website by this time.

Bids received by the General Contractor from a bidder not using the El Paso Bid Depository System, Inc. also must register the name of the bidder with the Corporation and submit their bid through the Corporation’s website prior to the Bid Depository Time in order to entitle the General Contractor to use bids submitted through the Depository.

No bids from Subcontractors or General Contractors will be accepted by the Corporation after Bid Depository Time.

Post Bid Procedure

Bids will be distributed through the Corporation’s website only to the registered General Contractors or their authorized representatives after the Bid Depository Time.

No bids will be released prior to Bid Depository Time.

Each General Contractor, before retrieving subcontractor bids, shall reject the bids from those subcontractors from whom he/she chooses not to accept a bid. The Corporation will list the bids retrieved and the bids rejected by each General Contractor.

The Corporation will furnish each bidder and other interested parties a recap of the bids.

Copies of bids will be made available to any party requesting them.

Rules and Procedures

Article I – Participants

The El Paso Bid Depository System, Inc. is open for use by any contractor who is lawfully doing business and is properly licensed by the State of Texas.

Article II – Policies

It is the general understanding of members of the construction industry that if a General Contractor is awarded a job, the competent low bidder among the various subcontractors will in turn be awarded the subcontract. However, the General Contractor can award the subcontract to any bidder as long as the subcontract is for such bidder’s quoted price by the Bid Depository time.

Deviations from the Corporation’s procedures, such as collusive or complimentary bids, are prohibited and are expressly prohibited.

Article III – Administration

The Corporation and the bidding procedures shall be administered by the Executive Director. Suggestions and recommendations concerning the operation of the Corporation will be received by the Board of Directors. The Board of Directors will be composed of representatives from each of the construction industries using the Depository. The Board of Directors will be composed of a minimum of seven members, including the Executive Director.

In order to be binding, any elimination, additions, amendments to or modifications of the rules and regulations hereinafter stated must be reduced to writing and presented at a Board of Directors meeting. Any such change to become effective, must be approved by a majority vote of a quorum of the Board of Directors.

Article IV – Executive Director and Registrar

An Executive Director of the Corporation shall be selected by its Board of Directors. His/Her duties will be to supervise the operation of the Corporation. The Executive Director may select a Registrar to assist him or her.

The Executive Director shall not be a contractor at the time he acts as Executive Director, and shall not be a person whose position is such as to make his duties hereunder inconsistent or in conflict with any other employment or office which he may hold.

Article V – The Depository

The site of the Depository shall be selected by the Corporation’s Board of Directors.

Article VI – Obligation and Fees

All users of the corporation agree to abide by the rules of the Corporation as stated herein and to exercise good faith in carrying out the express purposes and programs of the corporation.

Any subcontractor obtaining a contract on a project he/she has bid through the El Paso Bid Depository System, shall pay to the Corporation a fee, of 1% of a contract of his contract amount, provided, however, that the fees in no event shall be less than $200.00 and shall not exceed $7,500.00 per trade. The said fee shall be due and payable to the Corporation by the tenth of the month following receipt by the subcontractor of the first draw on the project.

Failure to make payment of the fee to the Corporation in a timely manner mayl result in having such fee paid directly by the General Contractor as by the subcontractor’s assignment to the Corporation and his authorization to the General Contractors to issue a check from the next draw directly to the Corporation for the fee amount.

In the event that a project that was originally processed through the El Paso Bid Depository System, Inc. needs to be negotiated due to circumstances originated by the owner and/or beyond the General Contractor’s control between the General Contractor and a Mechanical and/or Electrical Subcontractor who originally bid using the El Paso Bid Depository System, Inc., the Mechanical and/or Electrical Subcontractor who is awarded the contract shall include the Corporation’s fee in his new negotiated price.

If the General Contractor due to circumstances originated by the owner and/or beyond the General Contractor’s control elects to negotiate the mechanical and/or electrical subcontract with a subcontractor who did not use the Corporation at bid time, the General Contractor shall be responsible for and shall pay the Corporation’s fee on the new negotiated price.

In the event of litigation to collect any fees payable to the Corporation, or to enforce other provisions of these Rules and Procedures, the party owing such fees or otherwise liable for the breach of these rules and regulations, shall pay all costs for the suit, attorney’s fees and other expenses reasonably incurred in connection with such litigation.

Revenues from such fees shall be evaluated every twelve months in order to ascertain the reasonableness of the amount of the fee in relation to the necessary expenses of the operation of the Corporation. The bid service fee may be increased or decreased from time to time as necessary without amendment to these Rules and Procedures. If the Board of Directors determines that the proceeds from such fees are smaller than reasonably necessary to maintain and operate the Corporation and to finance such educational or promotional efforts as may be undertaken by the Corporation, the bid service fee may be increased by amendment to these Rules and Procedures.

Any Corporation user or participant who is sixty (60) days past due in the payment of any fee may be denied the use of facilities and services of the El Paso Bid Depository System, Inc. until such delinquent payments have been made.

Article VII – Rules of Operation

Bids Covered By These Regulations and Rules: Bids covered by these rules shall include any proposal, tender or offer to contract for the installation of subcontract work and/or subordinate or auxiliary parts of a construction project, when all of the following conditions exist:

• Plans and specifications are issued for the job.

• The Awarding Authority has formally indicated a desire that there be competitive bidding and a specified time has been established for receiving bids.

• The job is bid in such a manner that subcontract bids are not publicly opened.

• The Executive Director has given notice that bids will be accepted on the particular jobs through the Corporation. This notice shall define the time that bids are due in the Depository. Whenever practical, the time designated by the Executive Director for bids to be received will be three (3) working hours prior to the Awarding Authority’s Time.

Method of Submission: All bids shall be submitted through the Corporation’s Website by an authorized representative of the bidder.

Changes And Addenda: Once a bid has been submitted through the Corporation’s website changes can be made by editing the information until the Bid Depository time. No bid or edited information will be accepted by the Corporation later than the Bid Depository has specified for the job.

Bid Form: In order to facilitate rapid comparison of bids upon each project and in order to provide a mutual basis of competitive bidding, all bids shall be submitted on bid forms prepared by the Bid Depository for the particular project. Bid forms prepared by the Bid Depository will be furnished to any person registering with intent to submit/retrieve a bid through the Corporation.

Submission Of Bid: All Bids shall be submitted through the Corporation’s website.

Subcontractors who submit a bid through the Corporation must not provide a bid to the General Contractors by any other means.

Revocation Of Bids: Any bids submitted may be revoked, but not changed after the Bid Depository time, by the submitter of the bid up until one (1) hour before bid opening time as set by the Awarding Authority, provided that the submitter notifies each firm or person to whom he submitted the bid and the Corporation that said bid is being withdrawn from competition. The proper procedure for withdrawal is as follows:

• Each General Contractor from whom he desires to withdraw his bid shall be notified orally and by fax or email.

• The Corporation shall be notified of the withdrawal orally and by fax or email.

The consequences of failure to contact any given General Contractor shall be the responsibility of the subcontractor. Written evidence of withdrawal is necessary for the protection of all parties involved.

Delivery Of Bids: All bids addressed to the General Contractor shall be made available to retrieve through the Corporation’s website to authorized representatives after the Bid Depository Time and until the Awarding Authority’s bid submission time. The addressee or authorized representative must refuse to accept any bid of any subcontractor with whom he/she does not desire to contract before he or she can retrieve their bids.

General Contractors who accept bids through the Corporation must not accept bids from subcontractors by any means except as prescribed in the immediately following paragraph.

Submission Of Bids From Non-Participants: Any general contractor may accept bids from a bidder not using the Corporation and must then register the name of said bidder with the Corporation and submit their bid through the Corporation’s website prior to Bid Depository Time. Such bids will be opened and tabulated in accordance with these rules.

Opening Of Bids: Copies of the bids shall not be opened by the Corporation until immediately after the time of opening of bids by the Awarding Authority. All copies of bids submitted to the Corporation shall be recorded and filed in the office of the Corporation, where they shall be available for inspection by any interested party. The Corporation staff shall distribute a recapitulation sheet by fax or e-mail to bidding subcontractors, bidding general contractors, the architect and the Mechanical and Electrical Engineers. Copies of the bids shall be retained in the files of the Corporation for a period of one (1) year after the opening thereof.

Rejection of Bids: The General Contractor can decline to accept a bid from any subcontractor submitting a bid to the General Contractor through the Bid Depository for any reason whatsoever.

Compliance With The Bid Form: All bids shall comply with the conditions and bid forms as supplied by the Corporation. No modifications or alterations shall be made to the bid form unless so instructed by the Bid Depository System Office.

Liability Disclaimer: It is understood and agreed by all parties utilizing the Corporation that no officer, board member, employee or agent of the Corporation, including the Corporation itself, shall be responsible or liable in any manner for loss or damage so long as such parties act in good faith in administering the system. All claims against such parties, of whatever nature, are hereby waived by all parties, except for those which may arise as a result of willful acts in violation of these Rules and Procedures.

Grievances: The Board of Directors of the El Paso Bid Depository System, Inc., shall appoint seven (7) persons, of which four (4) persons shall be from the Board of Directors, for a one (1) year term to serve as a Grievance Committee. Any person who has a grievance against any other general contractor, electrical subcontractor or mechanical subcontractor concerning the Corporation shall file complaint with the Grievance Committee through the Executive Director. The grievance must be submitted to the Executive Director in writing; a concise, plain description of the facts and Rule of Operation allegedly violated will suffice. The committee shall investigate the grievance and conduct a hearing at which time all interested parties can be present in order to determine whether an infraction of the Rules of Operation in fact has occurred. The Committee, by majority vote, shall then determine (1) whether an infraction in fact has occurred and if one has, (2) the appropriate penalty for such infraction.

The Committee, in deciding whether to impose a penalty, shall consider the nature of the infraction, the flagrancy of any violation and the best interest of the continued operation of an effectively functioning Corporation. The penalty shall consist of one or more of the following elements:

1. Reprimand or

2. A penalty

• A penalty set by the committee should be set with due consideration to the amount of financial gain accruing to the contractor or subcontractor found to have violated the rules of operation.

3. Suspension for a limited time of participation in the Bid Depository program.

4. Permanent termination of participation in the Bid Depository program.
The finding of the Committee shall be reduced to writing and available for inspection by all parties.